Citation Nr: 0842459
Decision Date: 12/10/08 Archive Date: 12/17/08
DOCKET NO. 06-23 616 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to service connection for heart disease (a
cardiovascular disability).
2. Entitlement to service connection for a right foot and
ankle disability.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
J.G. Reinhart, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1968 to October
1969.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in San Diego,
California.
The issue of service connection for heart disease is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
A right foot and ankle disorder did not have onset during
active service and was not caused or aggravated by service
connected shrapnel wound of the posterior right knee;
arthritis of the right foot and ankle did not manifest within
one year of separation from active service; and a right foot
and ankle disorder is not otherwise related to the veteran's
active service.
CONCLUSION OF LAW
The criteria for service connection for a right foot and
ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1112,
5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309,
3.310 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that he currently suffers from arthritis
of the right foot as the result of his service-connected
shrapnel wound of the posterior right knee. In his December
2004 claim, he expressed his belief that either pain or
stress in his right leg had caused greater than normal stress
to his right foot. He also reported that sixty-five percent
of the time he walks with a limp and gait abnormality.
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §
3.303(a) (2007). In general, service connection requires (1)
medical evidence of a current disability; (2) medical, or in
certain circumstances, lay evidence of inservice incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in- service disease
or injury and the current disability. See Hickson v. West,
12 Vet. App. 247, 253 (1999).
Certain chronic diseases, including arthritis, may be
presumed to have been incurred in or aggravated by service if
manifest to a compensable degree within one year of discharge
from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2008).
Service-connection may also be granted on a secondary basis
for a disability which is proximately due to or the result of
an established service-connected disorder. 38 C.F.R. § 3.310
(2008). Similarly, any increase in severity of a nonservice-
connected disease or injury that is proximately due to or the
result of a service-connected disease or injury, and not due
to the natural progress of the nonservice-connected disease,
will be service-connected. Allen v. Brown, 7 Vet. App. 439
(1995). In the latter instance, the nonservice-connected
disease or injury is said to have been aggravated by the
service-connected disease or injury. In cases of aggravation
of a veteran's nonservice-connected disability by a service-
connected disability, such veteran shall be compensated for
the degree of disability over and above the degree of
disability existing prior to the aggravation. 38 C.F.R. §
3.322 (2007).
38 C.F.R. § 3.310 was revised during the course of the
veteran's appeal. See 71 Fed. Reg. 52747 (September 7,
2006). When a regulation or statute is revised during the
course of an appeal, the Board generally must determine which
version should be applied and/ or the respective time periods
for application of the respective versions. See Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.
This depends on whether the revision is to be given
retroactive effect. Id. The only part of the regulation
that affects the outcome of this decision (and the RO's
decision) is subsection (a). That subsection was left
unchanged by the revision. Therefore, an analysis of whether
retroactive effect is to be given to the revised version is
not necessary.
The amendment left unaffected subsections (a) of § 3.310.
Subsection (b) of the unrevised version was also unchanged,
but redesignated as subsection (c) in the revised version.
The revision consisted of a new subsection (b) which states
in full:
Aggravation of nonservice-connected
disabilities. Any increase in severity
of a nonservice-connected disease or
injury that is proximately due to or the
result of a service-connected disease or
injury, and not due to the natural
progress of the nonservice-connected
disease, will be service connected.
However, VA will not concede that a
nonservice-connected disease or injury
was aggravated by a service-connected
disease or injury unless the baseline
level of severity of the nonservice-
connected disease or injury is
established by medical evidence created
before the onset of aggravation or by the
earliest medical evidence created at any
time between the onset of aggravation and
the receipt of medical evidence
establishing the current level of
severity of the nonservice-connected
disease or injury. The rating activity
will determine the baseline and current
levels of severity under the Schedule for
Rating Disabilities (38 CFR part 4) and
determine the extent of aggravation by
deducting the baseline level of severity,
as well as any increase in severity due
to the natural progress of the disease,
from the current level.
This revision affects only those instances where the evidence
establishes that an increase in severity of the nonservice-
connected disability has resulted due to the service-
connected disability. In this case, the evidence establishes
that there has been no such increase in severity. Therefore,
the Board does not reach application of that portion of 38
C.F.R. § 3.310 that was revised. As the revision does not
affect the outcome of this decision, there is no reason to
determine which version is applied. Subsection (a) is the
only provision of 38 C.F.R. §3.310 for application and that
subsection is identical in both versions. In short, the
subsection of 38 C.F.R. § 3.310 applicable to this case was
not revised during the course of this appeal.
Service-connection for shrapnel wounds of the posterior right
knee was established by rating decision dated in May 1981.
Unless specifically stated otherwise, all treatment notes are
for treatment provided by Kaiser Permanente, including
treatment by "J.S.", M.D. February 1985 notes mark the
first report of symptoms of the veteran's right foot,
documenting that the veteran complained of pain and swelling
of onset in December 1984. This was assessed as possible
stress fracture or overuse syndrome secondary to faulty
shoes. Notes from May 1986 report that the veteran had
experienced low back pain and right foot pain for two years.
There were no reports of knee symptoms, and clinical
examination found the veteran to have no swelling of the
knees and to have a normal range of motion of the knees.
A May 1986 internal medicine consultation report noted that
the only reported history of trauma was a shrapnel injury of
the right leg sustained 20 years earlier. Physical
examination revealed normal range of motion of the veteran's
knees with no swelling. He had swelling and tenderness in
several of the joints in his foot and toes. An impression
was rendered of fairly marked symptomatic undifferentiated
spondyloarthritis. Even though the physician who signed the
report was aware of the earlier shrapnel injury of the
veteran's right knee, the physician made no mention of any
effect of that injury on the veteran's right foot. Had there
been a connection, it is likely that the physician would have
so stated.
The absence of any comment linking the shrapnel injury to the
veteran's right foot and ankle symptoms is more limited
evidence that there is no relationship between the veteran's
service-connected shrapnel injury and his right ankle and
foot disorder.
January 2004 treatment notes contain the veteran's report of
long term pain of the neck, back, and right foot and ankle
without any mention of symptoms of his right knee. These
reports were repeated in March 2004 notes with objective
findings of an enlarged right ankle and an antalgic gait.
Again, there is no mention of the veteran's knee, including
the shrapnel injury, as being connected to his right ankle
symptoms or any mention of symptoms involving the veteran's
right knee. This is more evidence against the veteran's
claim because it tends to show that the veteran's right knee
shrapnel injury was asymptomatic. This contradicts any
assertion by the veteran that he altered his gait due to his
knee injury, and is thus evidence that the veteran's right
ankle and foot symptoms are not related to his right knee
injury.
A rheumatology note from July 2004 documents the report of
nine years of ankle pain and swelling and a history of spinal
and neck arthritis. This report noted that a magnetic
resonance imaging study (MRI) found joint effusion that
mainly represented thickened synovium versus pannus
formation, suggestive of rheumatism. Physical examination
revealed tender synovitis of the right ankle with no other
joint swelling, good range of motion of wrists, elbows,
shoulders, and hips, and, significantly no knee, finger or
toe swelling. The MRI showed synovitis at the right ankle,
with mild periosteal reaction seen. He was assessed as
having ankylosing spondylitis with peripheral arthritis, of
onset approximately in 1983. Again, there was no mention of
a knee contribution to the veteran's ankle symptoms or of any
symptoms of his right knee.
In a September 2005 treatment note, Dr. J.S. repeated the
findings from the MRI and commented that:
with regards to the relationship between
his R calf shrapnel injury, it is
interesting that the only area of
peripheral arthritis is distal to this
military related shrapnel injury and the
relationship to this injury is worthy of
consideration. I guess is also possible
that there may be some foreign body or
percussion reaction distal to the
observed wound, that went unnoticed at
the time of the original injury.
In July 2008, the veteran underwent a VA examination of his
right foot and ankle. The examiner indicated that he had
reviewed the veteran's claims file and he provided a detailed
explanation of the relevant history in the claims file. This
history included that, in 1969, the veteran had received a
through and through shrapnel wound of the right knee with an
entrance and exit wound in the posterior aspect of his knee.
The examiner also reported that the veteran has undergone
treatment for his right ankle since 1980.
The veteran reported no initial pain of the ankle and no
active treatment for the ankle during service. He reported
that over the years he had experienced swelling and gradually
increasing pain in the medial aspect of the right ankle.
Physical examination of the right ankle revealed tenderness
and minimal soft tissue swelling of the medial aspect of the
right ankle and foot, and tenderness of the medial proximal
aspect of the foot. Pain on motion was observed. X ray
examination of the right ankle was normal, x-ray examination
of the right foot confirmed a diagnosis of ankylosing
spondylitis with peripheral arthritis. There was also
evidence of a prior stress fracture of the second metatarsal
shaft.
The examiner diagnosed a through and through shrapnel wound
of the right knee without altered gait from the knee, but
with altered gait related to the right ankle.
In answering the question posed by the RO, the examiner
opined that "the veteran's right foot and ankle arthritis is
less than 50/50 connected to the right knee shrapnel
injury." He explained that the MRI results and synovial
analysis indicate a rheumatic process or rheumatism,
indicative of collagen disease.
The examiner opined that the veteran's ankle pain is related
to the ankylosing spondylitis process and stated that
additional credence is added to this finding from the MRI
evidence of other joint involvement of the subtalar and
talonavicular joints with bone marrow edema in these regions.
He also reasoned that the veteran worked for 30 years for the
postal service but had no ongoing active treatment for the
right knee which would indicate a long term potential
alteration of his gait as well as significant symptoms. In
conclusion, the examiner stated that the did not feel that
the veteran's right foot and ankle arthritis is caused by, or
related to, the service connected shrapnel knee injury.
Essentially, this is reasoning that the lack of treatment for
the veteran's right knee disability militates against a
conclusion that he had significant symptoms of his right knee
or that his right knee shrapnel injury caused alteration of
his gait, which, in turn, logically leads to a conclusion
that the veteran's right knee shrapnel injury had nothing to
do with the veteran's right foot and ankle arthritis. A
review of the claims file supports the VA examiner's
reasoning.
Simply stated, the Board finds that this medical opinion
provides highly probative evidence against this claim.
Dr. J.S.'s September 2005 treatment note is evidence somewhat
favorable to the veteran's claim while the VA examiner's July
2008 opinion is evidence unfavorable to the veteran's claim.
In cases where there are conflicting statements or opinions
from medical professionals, it is within the Board's province
to weigh the probative value of those opinions. In Guerrieri
v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated:
The probative value of medical opinion
evidence is based on the medical expert's
personal examination of the patient, the
physician's knowledge and skill in
analyzing the data, and the medical
conclusion that the physician reaches. .
. . As is true with any piece of
evidence, the credibility and weight to
be attached to these opinions [are]
within the province of the adjudicators;
. . .
So long as the Board provides an adequate reason or basis for
doing so, the Board does not err by favoring one competent
medical opinion over another. See Owens v. Brown, 7 Vet.
App. 429, 433 (1995). Greater weight may be placed on one
examiner's opinion over another depending on factors such as
reasoning employed by the examiners and whether or not, and
the extent to which they reviewed prior clinical records and
other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40
(1994). Thoroughness and detail of a medical opinion are
among the factors for assessing the probative value of the
opinion. See Prejean v. West, 13 Vet. App. 444, 448-9
(2000).
Additionally, it is well established law that speculative
medical opinions are insufficient to support a grant of
service connection. In Bloom v.West, 12 Vet. App. 185
(1999), the Court found unpersuasive the physician's
unsupported statement that the veteran's death "could" have
been caused by his time as a prisoner of war. In Stegman v.
Derwinski, 3 Vet. App. 228 (1992), the Court held that
evidence favorable to the veteran's claim that did little
more than suggest a possibility that his illnesses might have
been caused by service radiation exposure was insufficient to
establish service connection. Similarly, in Tirpak v.
Derwinski, 2 Vet. App. 609 (1992), the Court found that
medical evidence which merely indicates that the alleged
disorder "may or may not" exist or "may or may not" be
related, is too speculative to establish the presence of the
claimed disorder or any such relationship.
Dr. J.S.'s statement is highly speculative in that he remarks
that a relationship between the veteran's shrapnel injury and
his right ankle arthritis is worthy of consideration and that
the he guessed that it is possible that there may be a
foreign body or percussion reaction distal to the wound that
had simply gone unnoticed. These statements of possibilities
and conjecture are highly speculative. Moreover, there is no
evidence that Dr. J.S. made this statement with information
from the service history of treatment contemporaneous to the
veteran's shrapnel injury. For these reasons, the Board
affords little probative weight to Dr. J.S.'s statements.
In contrast, the VA examiner rendered his opinion with the
benefit of the service medical records showing treatment for
the veteran's shrapnel wound. Significantly, the examiner's
opinion was not couched in speculative language. Instead,
the VA examiner stated a firm opinion that the veteran's
right foot and ankle arthritis was not connected to his right
knee shrapnel injury. He supported this opinion with
reference to the MRI and other diagnostic test results and
the lack of any long term treatment of the veteran's right
knee, despite working for the post office for 30 years. The
VA examiner was well aware of Dr. J.S.'s statements, as
evidenced by reference to Dr. J.S. in the July 2008 report.
Had the examiner believed that Dr. J.S.'s speculative
theories had medical support or were otherwise valid, the
examiner would have so indicated or would have rendered a
different opinion.
Because the VA examiner's opinion was unequivocal, grounded
in logical reasoning, consistent with other evidence of
record, and rendered after review of the veteran's service
medical records and other records contained in the claims
file, the Board affords this opinion great probative weight.
As such, the preponderance of medical opinion evidence is
against the veteran's claim.
Of note is that the VA examiner stated that the veteran's
right foot and ankle arthritis is less than "50/50"
connected to the right knee shrapnel injury. He also stated
not only that the veteran's right ankle and foot arthritis
was not connected to his right knee shrapnel injury, but that
his right foot and ankle arthritis was not caused by, or
related to, his right knee shrapnel injury. By the plain
language of this statement, the statement includes both a
finding that the veteran's right knee disability did not
cause his right foot or ankle arthritis and did not aggravate
his right foot and ankle arthritis. To find otherwise would
be completely arbitrary and contrary to the examiner's plain
language.
As the first report of arthritis came many years after
service, the presumptive provisions for chronic diseases are
not for application.
In several written communications, the veteran has asserted
his belief that his right foot and ankle arthritis is the
result of stress caused by his right knee shrapnel injury.
He makes this assertion despite the lack of any reported
symptoms involving his right knee other than those reported
contemporaneous to the injury. Regardless, the veteran, as a
layperson, is not competent to provide an opinion as to such
a complex medical question. See Routen v. Brown, 10 Vet.
App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge"); see
also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
(explaining in footnote 4 that a veteran is competent to
provide a diagnosis of a simple condition such as a broken
leg, but not competent to provide evidence as to more complex
medical questions).
This is not to say that a layperson is never competent to
address questions which appear, at first inspection, to be of
a medical nature. As the Court stated in Barr v. Nicholson,
21 Vet. App. 303, 309 (2007), some conditions, such as
varicose veins, are diagnosed by unique and readily
identifiable features, and a layperson is competent to report
observation of such features as visibly tortuous or dilated
veins. However, the Court has also stated that whether a
person suffers from bronchial asthma is not a question
subject to the opinion of a layperson. Layno v. Brown, 6
Vet. App. 465, 469 (1994). The question of whether the
veteran's right foot and ankle arthritis is related in any
way to his right knee shrapnel injury is even farther away
from the simple observable type of question subject to lay
evidence than is that of identifying bronchial asthma.
Therefore, the veteran's opinion that his right foot and
ankle arthritis is related to his right knee shrapnel
disability is not competent evidence.
As explained above, the evidence unfavorable to the veteran's
claim outweighs the evidence favorable to his claim.
Therefore, his claim must be denied. The evidence in this
case is not so evenly balanced so as to allow application of
the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102
(2008).
Duties to notify and assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the RO.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In this case, although the notice provided did not address
either the rating criteria or effective date provisions that
are pertinent to the veteran's claim, such error was harmless
given that service connection is being denied, and hence no
rating or effective date will be assigned with respect to
this claimed condition.
The remaining VCAA duty to notify was satisfied by way of a
letter sent to the veteran in February 2005 that fully
addressed all three notice elements and was sent prior to the
initial RO decision in this matter. This letter informed the
veteran of what evidence was required to substantiate his
claim and of the veteran's and VA's respective duties for
obtaining evidence.
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained VA outpatient
treatment records and assisted the veteran in obtaining
treatment records from Kaiser Permanente. VA afforded the
veteran an examination of his right lower extremity in July
2008 and obtained a relevant medical opinion. Significantly,
neither the appellant nor his representative has identified,
and the record does not otherwise indicate, any additional
existing evidence that is necessary for a fair adjudication
of the claim that has not been obtained. Hence, no further
notice or assistance to the veteran is required to fulfill
VA's duty to assist the appellant in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
ORDER
Service connection for a right foot and ankle disorder is
denied.
REMAND
The veteran asserts that he suffers from heart disease as the
result of his service-connected post traumatic stress
disorder (PTSD). After a review of the record, the Board has
determined that a remand is necessary to obtain additional
evidence from the veteran's private health care provider and
to afford the veteran a VA examination and obtain a medical
opinion.
VA has a duty to assist the veteran in substantiating his
claim by providing a medical examination and/ or obtaining a
medical opinion when certain factors are present. These
factors are: (1) whether there is competent evidence of a
current disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court has stated
that this element establishes a low threshold and requires
only that the evidence "indicates" that there "may" be a
nexus between the current disability or symptoms and the
veteran's service. The types of evidence that "indicate"
that a current disability "may be associated" with military
service include, but are not limited to, medical evidence
that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
VA outpatient treatment records from January 2008 contain a
report that the veteran had a pacemaker placed in September
2007 by "Kaiser", his primary care provider. This note
also states that the veteran was found to have chronic heart
failure and had been started on lasix. This is competent
evidence of a current disability; satisfying the first factor
listed above.
Service-connection for PTSD was established in a June 2005
rating decision. As the veteran has asserted that his heart
disease is caused or related to his PTSD, his PTSD is an
event, injury, or disease which occurred in service. This
satisfies the second factor listed above.
The veteran has submitted articles which provide generic
evidence that heart disease may be associated with PTSD.
While such evidence, standing alone, is insufficient to
support a grant of service connection for PTSD, the evidence
does meet the low threshold referred to by the Court in
McLendon ("indications") to trigger VA's duty to provide a
medical examination and/ or obtain a medical opinion. There
is currently insufficient evidence of record for the Board to
fairly decide the veteran's claim. Therefore, on Remand, the
veteran should be afforded a VA examination and a medical
opinion should be obtained as to whether the veteran has a
heart disorder and, if so, whether PTSD caused or aggravated
the heart disorder.
Additionally, while treatment records from Kaiser Permanente
are of record, the records are dated no later than September
7, 2005. As the VA treatment notes indicate that clinicians
at Kaiser Permanente placed a pacemaker after September 2005,
treatment records from Kaiser Permanente after September 2005
are relevant. On remand, the veteran should be invited to
submit those treatment records or execute a VA FORM 21-4142
so that VA can assist him in obtaining the records. Any
records obtained, or a negative reply, should be associated
with the claims file prior to scheduling the veteran for a VA
examination.
Additionally, the Board notes that 38 C.F.R. § 3.310, the
regulation defining service-connection as secondary to a
disability for which service-connection has already been
established has been amended during the course of the
veteran's appeal. See 71 Fed. Reg. 52747 (September 7,
2006). There is no indication that the revised regulation
was intended to have a retroactive effect. This amendment
added requirements for establishing aggravation of a
disability by a service-connected disability, which is an
indication that retroactive effect should not be given to the
change. See Landgraf v. USI Film Products, 511 U.S. 244,
268-69, 114 S.Ct. 1483, 1499 (1994). Therefore, the RO
should continue to adjudicate this claim with consideration
of the version of § 3.310 that was in place at the time the
veteran filed his claim, and with consideration of the
Court's decision in Allen v. Brown, 7 Vet. App. 439 (1995).
Accordingly, the case is REMANDED for the following action:
1. Send the veteran and his
representative a letter requesting that he
submit records of treatment for a heart
disorder from Kaiser Permanente, or any
other private health care provider, for
the period since September 7, 2005; or
that he execute a VA FORM 21-4142 and
request that VA assist him in obtaining
the treatment records. If such records
are unobtainable, as appropriate, the
RO/AMC should obtain a negative reply.
Associate all records obtained, or a
negative reply, with the claims file.
2. The veteran is asked to indentify any
disability claim he has filed with the
United States Postal Service (if any).
The record of any disability claim
(whether it was granted or denied) should
be obtained by the RO.
3. After completing the above, schedule
the veteran for a VA examination. The
claims file and a copy of this Remand must
be provided to the examiner and the
examiner must review the claims file. The
examiner is asked to annotate the report
as to whether the claims file was
reviewed.
The examiner is asked to identify any
heart disorder that have been present at
any time between May 2004 and the present.
As to any such identified heart disorder,
the examiner is asked to provide a medical
opinion addressing the following
questions:
(i) whether it is as likely as not (a 50
percent or greater probability) that any
such heart disorder was caused by the
veteran's PTSD.
(ii) whether any such heart disorder is
more severe because of the veteran's PTSD
than the heart disorder would be if the
veteran did not have PTSD; that is,
whether the veteran's PTSD has aggravated
any such heart disorder.
Rationale must be provided for all
opinions rendered.
4. After ensuring compliance with the
above, readjudicate the veteran's claim
for service connection for heart disease.
If the benefit sought is not granted in
full, provide the veteran and his
representative with a supplemental
statement of the case and allow an
appropriate time to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs